Historic Threat Looms To Public’s Right To Know

(Opinion)The Newtown shootings have led a state task force to suggest eviscerating a generation of freedom of the press protections and enable police, historic violators current laws, to keep even more public information secret. Following is a plea that James H. Smith, president of the nonprofit Connecticut Council on Freedom of Information, presented to the task force before its vote Friday. Now state legislators will decide whether to adopt the task force recommendations or whether to heed the plea.

Official statement of Task Force member James H. Smith, president of the nonprofit Connecticut Council on Freedom of Information.

Crime is a problem in the United States and in Connecticut. A big problem.

The people hire police and other first responders to protect them from crime. It is clear in the deliberations of this Task Force that law enforcement personnel have become too entangled with victims and the families of victims after crimes, horrendous crimes, are committed.

Aside from the duty to investigate and solve crimes, it is not the job of police to expend resources on victims and their families. The people pay the staff of the Office of the Victim Advocate to assist the families of victims. All the police personnel and time spent there, is time and resources not spent protecting the public – all the people – whom they are paid to protect. It is a disturbing trend to see police posted outside the homes of victims’ families, or to hear threats from officials that news reporters’ vehicles will be ticketed or jaywalking statutes will be strictly enforced.

Now, with this vote recommending more secrecy in law enforcement actions, the people the police are supposed to serve will be denied information they deserve to know about crimes and how they are solved or not solved.

The General Assembly leadership and the governor appointed this 17-member Task Force with a built in 9-member majority favoring privacy and secrecy. Although there was much expert testimony and many written submissions presented on the people’s right to know, there was very little analysis given to, or evaluation of that testimony and those viewpoints beyond a few questions asked of some of those testifying.

Hugh McQuaid Photo

It is historic fact that police, particularly the state police, consistently violate the state’s Freedom of Information laws by refusing to release nonexempt information about ongoing criminal investigations.  There are specific exemptions: signed statements of witnesses, investigatory techniques not otherwise known, uncorroborated allegations, for example. Otherwise, documents are presumed to be public, but the FOI Commission docket is clogged with complaints from citizens and the press seeking public information the police routinely withhold.

If the legislature adopts the recommendations of this Task Force, it will make it easier for law enforcement to keep secret what the people in a free and open society should know. In the name of sympathy for those families who have suffered from crimes against them, too many public servants are opting to deny the public its right to fully understand the violence being committed. It often has been the families of victims who need FOI access to law enforcement records to show malfeasance or misfeasance and to find justice.

We should not have to make judgments on public policy based on half-truths or partial truths or emotions. It is better to solve society’s ills knowing the whole truth or as much of the truth as we can know. So, for example, when this Task Force recommends putting 911 tapes off limits, tapes that have always provided first-hand knowledge to the public about criminal activity, it is a move away from accountability, away from understanding, and away from trying to solve the problems of violence in our culture.

The proponents of “privacy” have offered a small window into what historically has been open to the public – a place in a police department where someone can look at crime scene photos and listen to 911 tapes, but not copy them except through a long and laborious process. The task force has even taken the outrageous step – a first for FOI laws, proposing that it be a felony, punishable by imprisonment, if those records are copied without permission.

The FOI statutes could use tougher fines against those officials who violate the law. Perhaps we should change the law to include felony convictions and prison sentences for officials who break FOI law by refusing to release public information. Do you see the lunacy in the proposal?

The Task Force has proposed permanent harm to Connecticut’s historically highly regarded FOI laws. It has turned the system on its head, for the first time pushing the burden of proof from the government to the people. It has always been in this democracy that the government must show why a document can remain hidden from the public. Now it is proposed that the people must show why it should be released to them. The Task Force recommends eschewing our long-held “Perkins” test in favor of the watered down federal “Favish” standard.  An “unwarranted invasion of privacy,” (Favish) is a standard that makes it easier to keep something secret than our traditional two-pronged test (Perkins) requiring the government to show that the information sought is “highly offensive to a reasonable person AND does not pertain to a matter of legitimate public concern” in order to be withheld from public scrutiny.

I will venture to say, though I will let them speak for themselves, that the SPJ appointees voting with the majority did so to preserve at least that little crack of openness provided in the “compromise.” I cannot imagine they approved of the shift of burden of proof or the lower bar in the “unwarranted invasion of privacy” standard.

The federal FOI system has been recognized for decades as being inferior to Connecticut’s. Republican state Sen. Lewis B. Rome, rising to support passage of our FOI statue in 1975, called it “landmark legislation.” He observed that, “It is unfortunate that the atmosphere in Washington is . . . such that they would not consider adopting the very same kind of language . . . I hope that we would unanimously support the legislation as witness (to) our good intentions and good faith in the idea that government belongs to the people.”

Sen. Rome got his wish. The General Assembly unanimously approved our FOI statue and Gov. Ella Grasso, who had campaigned for FOI legislation with statements like “people are tired of a state government that hides its acts behind a curtain of secrecy,” signed it into law. She promised a government that is “open, honest, vital and concerned.” She won the election, the first woman in the United States ever elected in her own right to be a governor, by some 204,000 votes, the second highest margin of victory in the state up to that time.

The legislature should still heed Mr. Rome and Mrs. Grasso and reject the recommendations of this Task Force.




Post a Comment

Commenting has closed for this entry


posted by: hrsn on January 27, 2014  2:20pm

So, if a particularly lurid, sensational, national-news worthy crime is committed upon/by a family member (or a neighbor, or a relative, co-worker, etc.), we want to keep police from protecting us from the predations of TMZ, Action News Now (or whatever the local call themselves), CNN (where the’ll give it a name like “the Connecticut Massacre”), satellite trucks, and all that is in their wake?

I would vastly prefer that the news media be less interested in getting information about “horrendous [violent] crimes” and more active in getting to the bottom of horrendous non-violent crimes (exhibit A: political corruption).

posted by: Charl on January 27, 2014  2:46pm

So, if the Connecticut State Police refuse to follow the law when vailid FOI requests are made…..

nothing happens to them?

No arrest?  No independent investigation?

Then why would they ever release anything, if the law can be flouted with impunity?

posted by: Walt on January 27, 2014  3:54pm

Seems to me we should have some control over tosee press folk who like to publish lurid , messy news for its shock and selling value, more than protection of the victims’  families

If we should not directly control what they publish,  they should   better control themselves what they print or show,

posted by: darnell on January 27, 2014  7:43pm

It seems to me that folks only want freedom when it is convenient. Sorry, freedom is messy, it sometimes means that you will not be able to stop individuals you don’t approve of from moving into your neighborhood; or people of the same sex marrying each other; or maybe even allowing news media and others from printing or showing something you don’t like.

That, unfortunately, is the price for living in a free society. The beauty of that freedom is that you don’t have to read or view the “offensive” item, and you certainly don’t have to spend your hard earned dollars purchasing the news medium.

Isn’t our freedom and privacy being shredded enough by our federal government?

posted by: habitue on January 28, 2014  1:42am

Dear Mr. Smith:
Would pls have a word with our esteemed new City Clerk, Mike smart. As a former constituent when he was my alderman, I am incensed of his actions shortly after he began his current term. Smells like political machinery. He should heed the spirit and the code of FOI and remove his ego from interfering with the will of the citizens. Maybe he should be reminded that he is a servant of the public and that his office is not his fiefdom.